June 26, 2006

ADDED: The campaign finance cases -- both called Randall v. Sorrell -- lack a majority opinion. The Court strikes down a Vermont law that imposes limits on what candidates may spend and what individuals, organizations, and political parties may contribute to candidates.

Justice Breyer writes the main opinion, joined only by the Chief and Alito:

Well-established precedent makes clear that the expenditure limits violate the First Amendment. Buckley v. Valeo, 424 U. S. 1, 54–58 (1976) (per curiam). The contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment’s requirement of careful tailoring. That is to say, they impose burdens upon First Amendment interests that (when viewed in light of the statute’s legitimate objectives) are disproportionately severe.

Overruling Buckley is considered and rejected, applying the standard test for whether there is "special justification" to overcome stare decisis:

Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. We cannot find in the respondents’ claims any demonstration that circumstances have changed so radically as to undermine Buckley’s critical factual assumptions. The respondents have not shown, for example, any dramatic increase in corruption or its appearance in Vermont; nor have they shown that expenditure limits are the only way to attack that problem. At the same time, Buckley has promoted considerable reliance. Congress and state legislatures have used Buckley when drafting campaign finance laws. And, as we have said, this Court has followed Buckley, upholding and applying its reasoning in later cases. Overruling Buckley now would dramatically undermine this reliance on our settled precedent.

Alito writes separately to say the issue of overruling Buckley should not have been reached.

Kennedy provides the fourth vote for the outcome, writing:

Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment.

The fifth and sixth votes come from Thomas and Scalia. Thomas writes:

I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment. The illegitimacy of Buckley is further underscored by the continuing inability of the Court (and the plurality here) to apply Buckley in a coherent and principled fashion. As a result, stare decisis should pose no bar to overruling Buckley and replacing it with a standard faithful to the First Amendment. Accordingly, I concur only in the judgment.

Justice Souter has a dissent that Stevens and Ginberg join, and Stevens also writes a separate dissent. According to Souter, the limits on contributions were constitutional because they were not "depressed to the level of political inaudibility." (An odd locution.) As for the expenditure limits, there should be "further enquiry into their fit with the problem of fundraising demands on candidates."

Sorry to see this outcome -- I'd have liked to see the Kennedy/Thomas/Scalia position be the rationale.

More ammunition for those who say that Roberts/Alito are more minimalist conservatives than formalist conservatives. They seem to be following a track that is much closer to Solum's neo-formalism than to a more pure textualism.

Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., joined, and in which Alito, J., joined as to all but Parts II–B–1 and II–B–2. Alito, J., filed an opinion concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined, and in which Stevens, J., joined as to Parts II and III.

Ugh. Maybe all that talk about the end of fragmented opinions was just wishful thinking. And the campaign finance decisions seem to be the worst of all--is that just me?

Here's what struck me about Alito's concurrence: he seems very enthusiastic to talk about stare decisis. He complains that the respondents ask for Buckley to be overruled, but offer nothing to explain why stare decisis shouldn't apply.

Now, consider that liberals are (generally) only interested in stare decisis where abortion is concerned, and Alito was repeatedly asked about stare decisis at his hearings. What, if anything, should we read into today's concurrence? Should we read into it that he is not going to vote to overrule Roe any time soon (in the South Dakota case, for example)? Or - and I think this is more likely - is he saying "look, if you want Roe overruled, you'd better write a pretty good explanation as to why stare decisis doesn't apply into your brief"? Or am I being entirely too speculative?

I've been following Gonzales-Lopez for a while. I absolutely support Justice Scalia's opinion (note interestingly that Justice Alito wrote the dissent... so much for "Scalito").

Scalia points out that the Government's position would have eviscerated the 6th Amendment, having it grant no rights not granted already by the Due Process Clause. If you can afford it, you have the right to counsel of choice, not just the right to effective counsel. The dissent treats both rights as the same.

"Well they got one right, counting the ballots would have irreparably harmed Bush."

Except for the fact that, as it turned out, it wouldn't: subsequent to the election, a group of Gore-inclined newspapers set out to get a scoop by demonstrating that Gore would actually have won, only for it to backfire when it turned out that counting the ballots would have made no difference: Bush would have won it by a hair.

The only bad part about Bush v. Gore, from my perspective, was that it was the Kennedy opinion (which I disagree with) that decided the case, rather than the Chief's (which I still think has the best of it).

Ann - far be it from me to stop you laying into that perpetual nuisance, but to be fair, in the thread you're referring to, I persistently and repeatedly mis-spelled something, so it's not entirely comparable if he makes the odd typo.

a group of Gore-inclined newspapers set out to get a scoop by demonstrating that Gore would actually have won, only for it to backfire when it turned out that counting the ballots would have made no difference: Bush would have won it by a hair.

"[T]hey weren't Gore-inclined, and in fact the findings were that under a full recount, including the overvotes, Gore won in all circumstances."

All circumstances, that is, except the ones that would have existed had the U.S. Supreme Court not stepped in; "[i]n all likelihood, George W. Bush still would have won Florida and the presidency last year if either of two limited recounts -- one requested by Al Gore, the other ordered by the Florida Supreme Court -- had been completed, according to a study commissioned by The Washington Post and other news organizations." In any event, at this point, it scarcely matters; you despise Bush, and I'm not overly fond of him either, but regardless of what either of us think of him, or whatever armchair vote refereeing we may do, the fact remains that he's the 43rd President of the United States, and he made the decisions he's made (some of which I've disagreed with, many of which I have supported wholeheartedly), but he's never going to be on a Presidential ballot again, and in two-and-a-half years, we'll be rid of him forever. Personally, I'm far more interested in looking forward than recriminating about what might have been, and I think that would serve your agenda too.

What relevance is it what Gore asked for in the heat of a fight in which Bush and the media were calling for concession? It was the people's election. The Florida Court had already ordered a full recount.

Gore asked Bush for a full statewide recount -- Bush said no.

Under the Florida Supreme Court's order, the consortium found that Gore won in all circumstances with a full-recount of the state not including the overvotes.

So if the Supreme Court hadn't stepped in, Gore wins. If the Supreme Court stood by the first part of its order, to recount the state fairly with all votes where there was a clear indication of voter preference than Gore wins. It's only when the Supreme Court forces the recount to end early that Gore loses.

Today, this is why we are stuck in Iraq and not having to worry about the revenge of the glaciers.

Why are we bringing this up today? I mentioned this in a humorous throwaway :) but you guys feel the need to distort the facts once again.

The hitch was that the U.S. Supreme Court gave the state only two hours to complete this assignment, effectively handing Florida’s 25 electoral votes and the White House to Republican George W. Bush.

That's quite a bold misrepresentation. It was not the Supreme Court that gave them only two hours, it was the Florida state statutes. The Supreme Court merely upheld the deadline Florida had already imposed on itself.

Apologize for contributing to the distraction of 2000. From a lay person's perspective I agree with Nunzio that if stare decisis is an important principle in jurisprudence, it certainly stands to reason that one should be specific as to the reasons why it no longer applies--or is it, the very filing of the case, speaks for itself?

At any rate, the only case I am awaiting with interest is Texas redistributing

I hate to say this, but didn't Justice Stevens come across a little Grampa Simpson-ish in his dissent, "Ah, they didn't need to spend money on campaigns in my day! Why, we sat in the sun for 12 hours listening to Lincoln debate Douglas. A real candidate shouldn't need television commercials....."